MARIAMUNNIIA BEGUM Vs. NOOR MOHAMMAD SAHEB
LAWS(APH)-1963-11-9
HIGH COURT OF ANDHRA PRADESH
Decided on November 28,1963

MARIAMUNNISA BEGUM Appellant
VERSUS
NOOR MOHAMMAD SABEB ALIAS A. K. M. NOOR Respondents

JUDGEMENT

- (1.) THESE two appeals arise out of O. S. Nos 52 of 1955 and 45 of 1956 on the file of the Subordinate Judge s Court, Bapatla. The appellant was the plaintiiTin both the suits. The first suit was for recevery oi the value of 39 tolas of gold which was alleged to be the mahar due to the plaintiff from her husband, who divorced her on 7th June, 1955, and also for recovery of jewels worth Rs. 5,000 and a wrist watch worth Rs, 600. The parties are Muslims The plaintiff, Who was about 18 years old, was married to the defendant-res- pondent on 4th May, 1955 at Bapatla whets her sister resided with her husband (P.W. 3). The day after the marriage, the defendant-respondent took the plaintiff to Pondicherry. On his way, he stopped at Hyderabad for about three days. After reaching Pondicherry, the husband and wife lived there for about two weeks. On 27th May, 1955, the plaintiff's sister and her husband (P. W. 3) went to Pondicherry with the object of taking the plaintiff back to Bapatla for making the customary visits after the marriage. The evidence in the case shows that the unannounced arrival of P. W. 3 and his wife (plaintiff's sister) at Pondicherry annoyed the defendant-respondent. It is not necessary to refer to the background of mistrust or suspicion which the defeadint-respondent, according to his evidence, had already entertained against the plaintiff. The result of it all was that, P. W. 3 and his wife did not receive a warm reception from the defendant-respondent, It also appears from the evidence that the defendant was not happy about the plaintiff being taken back to Bapitia. However, the plaintiff aocompanied her sister and P. W. 3 to Bapatla. After reaching Bapatla, P. W. 3 wrote to the defendant but the reaction of the defendant does not appear to have been pleasant. On 2nd June, 1955, the defendant tent a telegram Exhibit B-3 to P. W. 3 asking him not ta send the plaintiff to him This was followed by Exhibit A-37 dated 7th June, 1955, conveying to P. W. 3 that be had divorced the plaintiff by pronouncing 'talak'. Exhibit A-37 was received by P. W. 3 on 9th June, 1955 ,and the plaintiff was duly informed of its contents the same day. Thereafter, on 4th July, 1955, the plaintiff caused a lawyer's notice (Exhibit B-7) to be issued to the defendant demanding the mahar of 39 tolas of gold aad also the return of the jewels of the plaintiff which the defendant had removed at Pondicberry and kept with him before the departure of the plaintiff from Pondicherry to Bapatla The defendant did not accede to these demands. Eventually , O. S. No. 52 of 1955 was laid by the plaintiff on 21st July, 1955. The defendant resisted the suit by setting up that the marriage itself was not va'id became it was brought about by misrepresentation, fraud and coercion and also because the consent of contracting parties viz-, the plaintiff and the defendant, was not given before the requisite number of witnesses as required by law. He further pleaded that he bad agreed to pay only a mthar of 3 tolas of gold and not 39 tolas as claimed in the plaint. The other ptsa ot his was that the jewels, which were presented by him, were kept back at Bapatla by the plaintiff when she proceeded with him to Pondichcrry, a nd that therefore there was no quesiton of the defendant removing the jewels and keeping them at Ponicherry. On this ground, he disowned liability for the claim regarding the jewels. He totally denied the claim regarding the wrist watch. O. S. No. 45 of 1955 related to the plaintiff's claim for maintenance from the defendant for a period of one year from 2nd June, 1955, at the rate of Rs. 400 a month. In this suit also, the defendant railed the plea that the marriage was not vaild and that the palintiff was therefore not entitled to any maintenance. He further pleaded that the rate of maintenance claimed was excessive and that the rate could be only Rs.50 per month,and all pointed out that the plaintiff was not entitled to cliam any arrear of maintenance, and that therefore maintenance for the period of one year could not be granted to her in any event. The learned Subordinate Judge passed a decree in favour of the plaintiff in O. S. No. 52 of 1935 to the extent of the value of 39 tolas of geld at the rate Rs 84 per tola He however dismissed the suit so far as the value of the jewels was concerned on the ground that the jewels were left behind at Bapatla by the plaintiff when she proceeded to Pondicherry with the defendant He further held as a matter of law that on the allegations in the plaint, the civil Court at Bparlhad no jurisdiction to entertain the suit so far as the claim for jewels was concerned. He therefore dismissed the suit in reipect of the claim for the value of jewels. In O S. No. 45 of 1956, the learned Subordinate Judge held that the plaintiff was entitled ia law to maintenance only for the period from 6th Au. gust, 1955 to 9th September, 1955, and dismissed the claim for the rest of the period. He awarded maintenance only at the rate of Rs. 50 per month. The plaintiff ha preferred Appeal No. 326 of 1960 from the judgment in O.8. No. 52 of 1955 and Tr. Appeal No. 197 ot 1961 is against the judgment in O. S. 45 of 1956. In these appeals the plaintiff seeks from this Court the reliefs which were disallowed by the trial Court in the respective suits, except the relief as to the wrist watch which has not been pressed in Appeal No. 326 of 1960 for very good reasons. Appeal No. 326 of 1960.The main question urged in this appeal relates to whethw the hiba jewels, which were admittedly presented by the defendant to the plaintiff ac the time their marriage, were removed by the defendant from tie custody of the pliuntiff and kept at Pondicherry where the defendant it residing. The trial Court came to the conclusioa that the plaintiff did not take these jewels with her when she went to Pondicherry with the defendant and that siw kept them at Bapatla where her sister lives and where her marriage' with the defendant was pe rformed. It is this finding that is strenoualy canvassed ia this appeal. The oral evidence in this case does not seem to be of much assistance in coming to a conclusion on the controversy between the parties. Each side has produced what may legitimately be characterised as partisau evidence. That this is the true position is conceded by the learned Counsel appearing on both sides. Both of them rightly pointed out that the safest course would be to go by the documentary evidence in the case and to regard it in conjunction with* reasonable probabilities. The plaintiff as P. W 7 stated that she had taken the hiba jewels with her co Poadicherry when she accompanied the defendant. The defendant, on the the other hand, has deposed" that-these jewels were not taken by the plaintiff to Pondicherry. The wit nesses on the fide of the plaintiff on the one hand and those of the defendant on the ether have also given equally divergent versions. The proper course, therefore, appears to be to see which of the two conflicting versions is supported by documentary evidence and the circumstances and probabilities of the case. After the 'talak', the plaintiff caused her law! yer to issue a regisered notice to the defendant. It is Exhibit B-7 dated 4th July, 1955, In it, the defendant was expressly told that he had kept the Hiba jewels with him at Pondicherry and that he should retu.n them or pay thci value. To this, the defendant replied by Exhibit A-9 dated 13th July 1955 He did not specifically deny that the Hiba jewels were in his custody and possession. Nor did he deny in express terms that those jewels were taken be him from the plaiaiff and detained at Pondicherry. On the other hand hs attempt in Exhibit A-9 was to make what may be said to be a counter-ch'ar ' or counterclaim against the plaintiff. He stated that the "entire sets of precious metal jewellery including loose diamond! and the previous day's cash balance" were found missing from his residence at Pondicherry. He clearly suggested that the plaintiff, her sister and P.W. 3, who left his house at Pondicherry durring his absence, removed his jewellery(not the Hiba jewels of the plaintiff) precious stones and cash.gNow, if the plaintiff's case about the Hiba jewels and their retention by the defendant at Pondicherry was false, one would expect the defendant to have said so in plain terms in the forefront of his letter, Exhibit A-9, The absence of any such specific repudiation leads to the inescapable conclusion that the claim regarding the jewels made in the lawyer's notice (Exhibit 8-7) is true and correct. It is significant that on 29th July, 1955 the defendant caused hit lawyer to send a reply (Exhibit A-11) to the plaintiff's Advocate. There, he denied that 39 tolas of gold wai settled as (dower.) He also denied the giving of Hiba jewels of the value of Rs. 5,000. It appears from Exhibit A. 11 that the very existence of Hiba jewels was denied: This is far different from saying that he gave certain jewels in gift to the plaintiff but plaintiff kept them at Bapatla and did not take them to Pondicherry and that therefore the allegation that he removed and kept the jewels at Pondicherry is filae. In paragraph 2 oi Exhibit A-11 it was, no doubt, stated that the day after the marriage the defendant took the plaintiff to Pondicherry without any jewels. But this statement does not seem to be an answer to the expreii claim made in Exhibit B-7. It appears to ,be intended only to convey that plaintiff had no jewels at all. Thus.it accords with the statement in the earlier paragraph of Exhibit A-l I denying the gift of jewels to the plaintiff. The next document that wai relied upon by the plaintiff is Exhibit A-3 dated 31th May, 1955, which is a copy of the registered letter alleged to have beco written by P. W. 3, plaintiff's brother in law, to the defendant soon after the plaintiff, her siter and P. W. 3 reached Bipatla fom Poadicherry. Exhibit A-3 complains that the defendant kept with him at Pondicherry the jewels of the plaintiff. If Exhibit A-3 is a genuine document, it will support .he plaintiff's case ; but this document is assailed as a fabrication by the defendant. It i not denied that on 31 it May, 1955, a rspBtered letter was sent P. W. 3 to the defendant, and that the defendant duly received it. But the case of the defendant is that the original of Exhibit A-3 was not that letter. According to the dafent Evhibit B-2 was the leltter eaclosed in the registered cover which was addressed by P. W. 3 to him. The difference between Exhibit B-2 and Exhibit A-3 is this. While Exhibit A-3 clearly makes mention of the detention of the plaintiff's Hiba jewels at Pondicherry by the defendant Exhibit B2 does not make any reference whatsoever' to it The plaintiff has attacked Exhibit B-2 as a fabrication. The learned Subordinate Judge discredited Exhibit A-3 on the ground of itt late production in Court. But I do not think this circumstance alone is sufficient to dub Exhibit A- 3 as false and fabricated. Exhibit A-3 is written in the hand of P. W. 3 on his own printed letterhaed and signed in full by him as he has signed several other letters written by him ti the defendant. Eehibita B-12 B-22, B-27, B-29 and B-31 are all Utters written by P.W. 3 to the defendant. All these letters are written in P. W. 3's own band on his printed letter-papers and fully signed by him. Exhibit B-25 alone is on an inland postal envelope, but that alia is completly in his handwriting and bears his full signature. But, Exhibit B-2 is written OB a plain sheet of paper and is typewritten, not band written. The writer (purported to be P? W. 3) has not subscribed his full signature to it. Something like an initial and that itself more or lets clumsy appears on Exhibit B-2 What Is more, the space between "yours, I am" and the typed name of P.W. 3 below is too narrow even for a small signature. Aad on comparing the signature in Exhibit B-2 with the admitted signatures of P. W. 3 in Exhibit B-12, B.22, B-25, B-27, B-29 and Be31, it it difficult to say that Exhibit B.2 bears the genuine signature of P.W, 3.There appears BO reason why P.W. 3, who before 31t May, 1955 and after it sent letters to the defendant in his own handwriting and on his printed letter papen, should on 31st May, 1955 alont have given up his printed letter-paper and also resorted ta getting the letter typewritten. It appears to me that the reason why Exhibit B-2 was typewritten was the difficulty1 to write out several sentcneea without being detected that they are not in the handwriting of P. W. 3. It would have been much aaore easy to manage a signature of P. W. 3 than to attempt a few senten. ces in his own handwriting; Further, the "evidence ia the case amply bears out that P. W.3 left Pondicherry rather unhappy. He received a curl and cold reception from the defendant, and if the defendant had also withheld the hiba jewels of the plaintiff, there would have been good reasons for P. W. 3 to send to the defendant a letter registered with acknowledgment due. If the letter of 31st May, 11155, was only meant to inform the defendant that they had arrived safe at Bapatla and that the plaintiff would be taken in a few da.ys to Madras front where the defendant could take her to Pondicaerry, there would have been no need really to send it by registered post. The only circumstance against the acceptability of Exhibit A-3 is its late production by P. W. 3. But this circumstance alone does not appear to me to be sufficient to dub Exhibit A-3 as fabrication. Lack of due diligence in producing documents in Court, however unfortunate it be, need 'not necessarily lead to the inference that the documents produced at a late stage are false or concocted. I would refer once again in this context to Exhibit B-7 dated 4th Julyl 1955 which was issued by the plaintiff's lawyer making a specific and pointed allegation: that the defendant detained the hiba jewels of the plaintiff a' Pondiehcrry and asking for their return. The allegation was not expressly denied by the defendant'ia Exhibit A-, the registered letter, which was sent ia reply to Exhibit B-7 on 13th July, 1955. No doubt Exhibit A-9 contains a broad denial of the obtire claim made in the lawyer's notice, Exhibit B-7 This denial comprehends not only the claim In respect of jewels but also the claim regarding mahar. Such a broad and cold denial does not properly accord with the specific case put forward by the defendant at the trial that the jewels were presented by him to the plaintiff and that they were kept behind by her at Bapatla. If this wai the truth, it would have been prominen tly stated in Exhibit A-9. I must also say that even in Exhibit A-11 dated 29th July, 1955, which was a reply notice issued by the defendant's lawyer to the plaintiff's lawyer, he did not expressly set up that the jewels presented by the defendant ta the plaintiff were not taken by the plaintiff to Poadicherry but were kept by her at Bapatla. In view of Exhibits B-7 and A-11, I do at think it was necessary for the plaintiff to have fabricated Exhibit A-3 She would not have beta advised by anybody to make such a risky attempt, Besides, if the plaintiff r her friends |were seeking to arm themselves with a false document like Exhibit A-3, they could well have caught time by the forelock and got up the document at a very early stage of the suit. P. W. 3 had his printed letter-papers. He need only write out an imaginary letter and sign it and then produce it as the true copy of the registered letter which he sent on 31st May, 1955. The long delay of over a year would have been, unnecessary for achieving thisT The case of the .plaintiff had already been stated in Exhibit B-7 dated 4th July, 155. The plaintiff had reiterated that claim. Therefore, it was not necessary to gather any material or to investigate any matter for getting up Exhibit A-3. I do not therefore think that the delay in producing Exhibit A-3 stamps that document with falsity. It may be sheer lack of diligence on the part of the plaintiff or her advisers which caused delay in the production of Exhibit A-3. But this circumstance must be placed in its proper perspective and eonsidered along with ether circumstances of the case before discrediting Exhibit A-3. The Court below does not appear to have done this. It brushed aside Exhibit A-3 on the sole ground of its late production. Considering the question as to which of the two documents, Exhibit A-3 and Exhibit B-2, is the genuine one, I am inclined to hold that Exhibit A-3 is genuine and Exhibit B-2 is not genuine. I may however state that Evhibit A-3;does not by itself etablish the plain, tiff's case. It is only a link in the chain of the evidence and the probabilities of the case. Even if this link is severed from the chain, I think what remains is sufficient to uphold the claim of the plaintiff. The learned Counsel for the respondent then relied upon Exhibit B-4 dated 2nd June, 1955. This is said to be a copy of an .ordinary letter alleged to have been written by the defendant to P. W. 3 on 2nd June, 1955. This document says that it was written to confirm the telegram Exhibit B-3 dated 2nd June 1955, sent by the defendant to P. W. 3. If the original of Exhibit B-4 was intended merely to conf rm Exhibit B-3, any mention in Exhibit B-4 about any jewels would have jbeen unnecessary. Exhibit B-4 goes much beyond Exhibit B-3 and asks P. W. 3 to hand over to the defendant all the jewels in. eluding those presented by the defendant to the plaintiff. Exhibit B-4 also acknowledges the receipt of the registered letter dated 31st May, 1955. It is somewhat odd that a reply by ordinary post should have been issued to a registered letter sent with acknowledgment due. The normal course of conduct would have been to reply a registered letter by meant of another registered letter. Thii was especially so when Exhibit B-4 for the first time made an important claim that P. W, 3 should hand over to the defendant all the jewels including those presented by the defendant to the plaintiff. Why should such an important claim have been made in a letter by ordinary post which was sent in reply to a-registered letter of P. W. 3 really requires expiantation. But no explanation is forthcoming on the side of the defendant. If the plaintiff and P. W. 3 stealthily removed very valuable jewels, cash and diamonds from the house of the defendant at Pondicherry and ,took them to Bapatla, one would have expected the defendant to demand their return by a registered letter, if not by a telegram very soon after 27th May, 1955, when the alles ged theft was committed. But the defendant appears to have waited till 2nd June, 1955 and chosen the occasion of a reply to P. W. 3's registered, letter ;to put forward such a claim for the first time. This, to my mind, appears somewhat odd. I am also unable to see why in the telegram, Exhibit B-3 sent on 2nd June, 1955, the same day as the letter Exhibit B-4, no mens tion was made about jewels by the defendant. There is yet another aspect to be considered. In Exhibis A-9, dated 13th July, 1955, which was a registered reply notice issued by the defendant to the plaintiff's lawyer, the defendant did not mention that any jewels had been presented by him to the plaintiff. What he did was to indulge in a wholesale denial of all that was stated in Exhibit B-7. Subsequently, on 29th July, 1955, he caused his lawyer to sead another letter to the plaintiff's lawyer, that is Exhibit A-11, Even in this letter he did not say that he presented any jewels to the plaintiff. There is not even a whisper either in Exhibit A-9 or A-11 that the plaintiff kept at Bapatla the jewels presented by the defendant. It would require really an effort not to say bo in view of the specific allegations and charges made in Exhibit B-7 by the plaintiff's lawyer. Exhibits A-9 and A-l 1 appear to be consistent with a case that no jewels were presented by the defendant to the plaintiff and that the allegation regarding the detention by the defendant of the jewels is therefore false. Even the promise to pay mahar was wholly denied in both Exhibits A-9 and A-ll. If as early as 2nd June, 1955, the defendant had committed himielf to the stand that he had presented certain jewels to the plaintiff.be would not have so obviously avoided eference to that fact in Exhibits A-9 and A-11. In fact the defendant's attempt in Exhibits A 9 and A-11 appears to have been to place himself in such a position as to be able to say that no jewels were presented by him to the plaintiff and that therefore no question of any such jewel being returned by him to the piaintiff arose. This, he would not have attempted, if really he had committed himself on 2nd June, 1955 in Exhibit B-4 that Jewell had been presented by him to the plaintiff. It therefor seems to me that Exhibit B-4 came into being after Exhibits A-9 and A-11 and at a time when the defendant thought it to take a clear stand that jewels.werth about Rs. 5,600 mentioned in the plaint were really pretested by him to the plaintiff,but that be plaintiff kept them at Bapatla and did not take them to Pondicherry, and that consequently the allegation the defendant removed the jewels of the plaintiff at pondichcriy is fa'se. This appears to have bees a later develop, meat aad it was at that stage that Exhibit B-4 appears to have been brought into being. In this view, I am inclined to hold that Exhibit B-4 is not a true document. What 1 am not able to understand is the pronounced reluctance on the part of the defendant in his replies to the plaintiff's lawyer to admit ihat he had presented the jewels and lhat the plaintiff bad kept those jewels at Bepatja What could this reluctance be due to? I think it is reasonable to say that the defendant thought it would be better and perhaps easier to make out that no jewels at all were presented to the plaintiff 10 that the entire case regarding the defendant having taken the. presented jewels from the plaiatiff and kept them at pondicherry would practically be destroyed. This stand could have been thought of only to avoid the possibility of it being found by the Court that the jewels, which were presented by the defendant to the plaintiff, were taken by the defendant himself and kept with him. If it is not this that induced the defendant t adopt the attitude already adverted to in Exhrbits A-9 and A-1I, I am not able to see what else could have induced it. And this attitude could perhaps be born only of the consciousness that the jewels which he gave in gift to the plaintiff, his wife, were in his possession at the time of Exhibits A-9and A-11. The defendant's (respondent's) learned Counsel has relied upon Exhibits B-60. dated 6th June, 1955, B-61 dated 17th June, 1955 and Exhibit A-6 dated 9th June, 1955 and argued that P. W. 3 did not make any reference to the. hiba jewels of the plaintiff in any of these three letters. From this circumstance, he invited me to infer that the claim regarding the hiba jewels made by the plaintiff is false. I am not able to agree with this argument. Exhibit B-60 is a reply to tht telegram Exhibit B-3 dated 2nd June, 1955. It is signi. ficant that no mention of the letter Exhibit B-4 which is alleged to have followed the telegram is made in Exhibit B 60. This, if anything, points to the inference that the letter Exhibit B-4 was not received by P.W. 3. .The reliance placed by the defendant on Exhibit B-60 .would not avail him in view of the context in which Exhibit B-60 came to be written. The defendant sent a telegram asking P. W. 3 not to take the plaintiff to him. This telegram signified the estrangment between the plainiff and the defendant. It mutt have been a shock to P.W. 3, who only a few weeks ago celebrated the marriage of the plaintiff to the defendant at his residence, in Bapatla. Therefore, he wrote Exhibit B-60 trying to persuade the defendant to take back the plaintiff. That was only a conciliatory attempt OJQ the part, of P. W. 3 and that surely was not the occasion for making a claim for. return of jewels on the defendant and thereby further annoy and irritate him. Exhibit A-6 dated 9th June, 1955, appears to have been written without knowledge that a 'talak' bad been pronounced by the defendant. This letter also evidences the anxiety of P. W. 3 to bring the plaintiff and the defendant together. He therefore informed the defendant by Exhibit A-6 that the plaintiff was ill and that the defendant should come to Bapatla d uke her with him. Thus, one would expect P. W. 3 in theie circumstances not to make any demand on the defendant for return of the hiba jewels of the plaintiff. Exhibit B-61 dated 17th June, 1955, marks the angry reaction of P W 3 to the 'talak' pronounced by the defendant. He rambles in exhibit B-61 over many details and circumstances and yet seems to leave the door open for the defendant aod the plaintiff to reconcile. Merely because this letter did not ask for the return of the hiba jewels of the plaintiff, it is not reasonable to infer that the plaintiff's claim to hiba jewels made in Exhibit B-7 and in the plaint is false. What is important to observe is that, even in Exhibit B-61, P W. 3 had not completely lost hopes of the defeudaat and the plaintiff coming together again as man and wife. It was therefore only reasonable that he did not want to raise any issues in Exhibit B-61 which would affect such a prospect. The non-mention about hiba jewels of the plaintiff in Exhibits B-60, A-6 and B-61 cannot in the circumstances already set out lend any point to the defence. There are certain other broad probabilities. Here is a case where a Muslim girl who was comparatively uneducated and at best of average means who does not appear to have been able to secure a proper match for her at last came across through the medium of an advertisement in "The Hindu" a covetable match in the defendant who was a young, affluent and prosperous businessman. It was P. W. 3, an Inspector of Co-operative Societies at Bapatla, who was chiefly instrumental in bringing about this marriage The many letters that passed between P.W. 3 and the defendant before the marriage bear out the interest evinced by P. W. 3 to bring about this marriage It also appears that P. W. 3 was trying to impress upon the defendant that plaintiff was of noble itook and that they were all respectable and decent folk It was in this atmosphere that marriage came to be celebrated, tfaaj costly jewels worth about Rs. 5000- came to be voluntarily presented by the defendant to the plaintiff and a handsome mahar of 39 tolas of pure gold were settled. Would P. W. 3 or his wife, who is the sister of the plaintiff, the day .after the marriage take away the hiba jewels of the plaintiff and cause her to accompany her husband to Pondicherry without those jewels? I do not think it is ptobablfl that P. W. 3 or his wife would have adopted such conduct within twenty-four hours of the celebration of the marriage. The defendant and his friend and his fiiend's wife who were accompanying the bride would certainly hav asked the bride about her leaving the hiba jewels behind and in all probability the defendant would also have asked P. W. 3 or his wife about it. The defendant and the plaintiff lived together the previous night and started together, the next morning from the same house at Bapatla, They were teen off at the railway station by the wife of P. W.3. It is difficult to believe that the defendant, who was the newly wedded husband of the plaintiff was kept in the dark as to the hiba jewels when the morning after the marriage hit wife accompanied him to Pondicherry where he resided permanently. It is also noteworthy that although letters paised between P. W. 3. and the defendant after the defendant took the plaintiff to Pondicherry and befoie the was taken back from pondicherry by P. W. 3 and hii wife on 27th May, 1955, to Bapatla. no mention at all was made by the defendant in any of the letters about the-hiba jewels of the plaintiff being kept at Bapatla.' One would reasonably expect the defendant to have mentioned about it in one of his communications to P. W. 3 during this period, The absence of any such hint in any of the correspondence which passed between P. W. 6 and the defendant points to the probability that the hiba jewels were taken by the plaintiff along with her to Pondicherry whereto she accompanied her husband. I have already referred to the attitude adopted by the defendant in the letters Exhibits A-9 and A-11. This conduct of the defendant also appears to be in consonance with the truth of the plaintiff's case regarding the jewels. In view of what I have stated above, I am inclined to disagree with the finding of the Court below and hold that the hiba jewels were taken by the plaintiff to Pondicherry and that the defendant kept those jewels with him at Pondicherry and did not return them to the plaintiff when she left Pondicherry or at ony time thereafter. The learned Counsel for the respondent-defendant now argues that regarding the claim for jewels, the Subordinate Judge's Court at Bapatla had no territorial jurisdiction to entertain the suit. This contention was successfully advanced in the trial Court which held that it had no jurisdiction to entertain the suit, in so far as it related to the value of the hiba jewels. The argument on behalf of the respondent is based on section 20 of the Code of Civil Procedure. It is pointed out that the defendant is residing at Pondieherry, that the alleged handing over of or detention of the hiba jewels of the plaintiff took place at Pondicherry and that therefore the cause of auction arsoe at Pondicherry , and nowhere else. Consequently it is urged that the suit so far as it related to the jewels would lie only in the Pondicherry Court and not in the Court at Bapatla. This contention appears to be good to the extent it goes, but it does not take note of the common law rule that a debtor has to seek out his creditor and pay and that therefore the creditor is entitled to institute the auit for the debt at the place of his residence. That this rule of English common law applies to this country is well settled In Bharumal v. Sakhawttiral a Divi. lion Bench of the Bombay High Court consisting of Chagla, C.J.,and Dixit, J. pointed out that the common law rule is a reasonable rule and- it is in conformity with justice and equity because it recognises the obligation of the debtor to pay his debt and that obligation can only be discharged by he debtor going to his creditor and repaying the amount. Two earlier decisioas of the same High Court in Dhunjisha Nuiserwmjs v. A, B. Forde ', Motilal v. Svrejmal' also held that the common law rule applied to India and gave effect to that rule. Theie two earlier decisions of the Bombay High Court were referred to with approval by the Privy Council in Soniram Jettimul v. R, D. Tuta & Go. Ltd. 1 Viscount Sumner after referring to Dhunjisha Nuserwhnji v. A. B Forde ' and Molilal v. Surajmal and the arguments based upon section 49 of the Contract Act, observed: "Their Lordships do not think that in this state of the authorities it is possible to accede to the present contention that section 49 of the Indian Contract Act gets rid of inferences, that should justly be drawn from the terms of the contract itself or from the necessities of the case, involving in the obligation to pay the creditor the further obligation of finding the creditor so as to pay him." In K.A.S.Mthammid.Ibrahim v.Minr Jait/ioon Bibi Ammal Fanchapakesa AyyarJ dealt with a case, the facts of which were very near the facts of the present case and held that the rule that the debtor must follow the creditor applies and that consequently the creditor, Muslim wife, who wag divorced, by her husband cquld iastitute a suit for return of her snahar, jewels and clothes at the place where she resided. His Lordship followed a decision of the Calcutta High Court in Tulsiman v. Abdul Latif Mia ', which was a suit for mahar by a divorced wife of a Muslim instituted in a Court within the local jurisdiction of which the wife resided at the time of the suit. This decision also is rested on the doctrine that debtor has to seek out the creditor to pay him. It is unnecessary to refer to all the authorities, Indian and English, referred to in this decision. If the principle is applicable to a suit for mahar, there a ppears no reason why it should not equally apply to a suit for return of hiba jewels. As stated y Panehapakesa Ayyar, J., In K.A.S. Mohammtd Ibrahim v. Miner Jaithton Bibi Ammal'. "the divorced wife can bring the suit in respeet of her prompt dower and obviously therefore, also for her clothes and jewels at the place where she resides at the time of the divorce and receives notice thereof." The learned Counsel for the respondent has relied upon a Division Bench ruling of the Madras High Court in Ramalinga lyn v. Jayalakshmi. This decision does not at all indicate that the English common law doctrine that a debtor should follow his creditor and pay him does not apply to India. If anything, the judgment of Leach, C.J., indicates the contraiy view. But the common law doctrine was not applied in Ramalinga Iyer v. Jayalakshmi' because as a matter of inference and interpretation of the contract aad the circumstances of that cae it was bold that the debtor was to deliver the articles at particular place different from where the suit was laid. It is well established that the rule that the debtor should seek out the creditor so as to pay him will apply only where the contract does not specify the place of performance or such a place cannot be implied from tUe terms of the contract or the circumstances of the case If the contract specifies that the debt is to be repaid or the goods a to be re-deltvered if a particular place, then the rule that the debtor should seek ihe creditor cannot be invoked. So also if by implication a certain plac? for repayment or re-delivery can be predicated, the common law rule cannot come into operation. Therefore, in Ramaliga Iyer v. Fayalakhmi their Lordships held that the goods Were to be re-delivered at a particular place as a matter of necessary implication arising from the circumstances of the case, and consequently the rule that the debtor should seek out the creditor not applied It follows that Ramding Iyer v. fayalakashmi is not an for the proposition that the eommoo law rule does not apply to the country or does not apply to a case like the present where the place for the return of the jewels was not specified nor could it be inferred as a matter of necessary im. plication from the circumstance, of the case. To suca a caserne common lw rule that the debtor shoald seek out the creditor wll apply Halsbury, in volume VII, Page 19o6, stated the position at fallows; "Where no elace for per ferniance is specified either expretsly or from the nature and terms of the contract and, the sence of both parties for completion, generalrule is that the promissor must seek out the promisee and perform the contract wherever missor must happean rule applies not only to contracts for the payment but all promise for the performance of which the concurrence of pfomisee is necessary." The English rule has been thus stated by Bowen, L. J., in The Edier' "The generall rule is that where no place of payment is specified either expressif or by implication, the debtor must seek his creditor. Haldane v, fahason ( (1853) 8 Ex. 689). it was held that a covenant for payment of rent whean no particular place of payment is men tiened is analogous to a covenant to pay a sum of money in gross a day certain in which case it is incumbent on the covenator to seek out the person to be paid and pay or tender him the money. In thejudgment in that case the conclusion to the same effect, arrived at on the authorities by 'Parke B. in Poole v. Tumdridgs ( (1837) 2 M.&W.223). Fessrd v. Mugnier ( (1865) 18 C. B N. S. 286). A Division Bench of the Calcutta High Court has dealt at lengh with the applicability of the common law doctrine that a debtor should and his creditor ' apphcabhty of chandrasikdar v. smt/ santimoyee choudhuir this decision has also reviewed the relevant case law on the subject. The several discuswd there show that this rule is applicable to this county also although it cannot be invoked in te case of negotiable instruments. I have no doubt that in the instant case the defendant is in the position of a debtor and the plaintiff in the position of a creditor. Therefore, the defendant, who has specifically called upon by the plaintiff, was bound to deliver to her the hiba jewels or pay their price at the place where sh,; resided. The learned Counsel fon the respondent-defendant has conceded that so far M the suit relates 'to mahar, Bapatla Court has jurisdiction, I fail to see why, on principle, that Court should not have jurisdiction in respect of the claim for jewels also. I therefore differ from the view of the trial Court and hold that the Court of the Subordinate Judge Bapatla, had jurisdiction to try the suit in respect of the hiba jewels also. It follows from the foregoing that the plaintiff is entitled to a decree in respect of her claim for hiba jewels. But the learned Counsel for the plaintiffs appellant has not challenged the finding of the Court below that the value of the hiba jewels is only Rs. 4,584 and not Rs. 5,000 as claimed in the plaint/ nor has the learned Counsel for the respondent disputed the correctness of the value of the jtwels assessed by the Court below. It follows that the plaintiffs will get a further decree Jor Rs. 4, 584 also against the defendant for value of the hiba jewels. Appeal No. 326 of 1960 is accordingly allowed and the decree of the Court below in O. S. No. 52 of 1955 is modified to this cx'fnt. The plaintiff will get proportionate costs in this appeal. Transfentd Appeal Jto. 197 of 1961. We now come to Transferred Appeal No. 197 of 1961. The plaintiff-appellant asked for maintenance for one year at the rate of Rs. 400 a month. The Court below granted at the rate of Rs. 50 a mpnth from 9th August, 1955 to 9th September, 1955 and disallowed main- tenance for the rest of the period. It appears that at the time of the arguments in the Court below the learned Counsel for the plaintiff confined his-claim to three months' maintenance. THESE three months represent the period of But the trial Court did not agree to this. In this appeal the appellant-plaintiff teas asked that she is entitled to three months, maintenance being the period of Iddat. It appears to be clear that a Muslim wife who is divorced is entitled to get maintenance from her erstwhile husband during the period of Iddat To get maintenance for this period.it is not necesssary that a suit must be instituted even before the period of Iddat commences. That would be virtually impossible because Iddat starts from the date of the divorce and it will not be pos'ble except in extremely exceptional cases to institute a suit on the date the sdaq is pronounced. The lower Court appears to have fallen into the error of thinking that if a suit is instituted say, one month after the divorce the plaintiffwould lose her right to maintenance for that month which has already gone b I do not think this is a correct view of the law. The wife in the circumstances of a case like the present is entitled to maintenance for three monihg from th date of the pronouncement of the talaq. In the present case, talaq was pronou need on 7th June, 1955. The plaintiff is therefore entitled to a decree for maintenance for a period of three months commencing from 7th June 1955 The rate of maintenance claimed in the plaint and pressed at the trial was Rs. 400 a month. In the written statement, the defendant alleged that the proper rate of maintenance would be Rs. 50 a month. The trial Court adopted the defendant's version. I do not tnink this was justified. The Subordinate Judge himself stated that the defendant bslonged to upper middle class and that the plaintiff can be said to belong to average middle class. 1 do not think a sum of Rs. 50 is proper maintenance for the wife of a gentleman of upper middle class or to a lady belonging to the ordinaty middle class. The learned Counsel for the plaintiff-appellant has pressed upon me Exhibit A-15 which is a pre-marital letter written by the defendant -,to P.W. 3. This letter appears to me an exercise in self-advertisement by the defendant. He pictures himself as almost business magnate with accounts in many famous overseas Bankt with flourishing export and import trade with many foreign countries. But this letter itself says that he has invested only a sum of Rs. 30,000- The possibilities of such a small investment do not seem to well accord with the tall claims made by the defendant in Exhibit A-15. I do not think it will be fair to the defendant to catch him at his own vanity and make him liable to pay more than he reasonbly can. The plaintiff has not, been able to substantiate the plaint allegation thit the defendant's monthly income is Rs. 2,000 and that he owns buildings and lands and a bank balance of Rs. 4 lakhs. All these seem to ba exaggeration on the part of the plaintiff in order to swell the rate of maintenance. Considering all the aspects of the matter, I think a sum of Rs. 100 a month will be a fair and reasonable rate of main, tenance to be awarded in the present case. The Decree of the Court below is modified as indicated above, The parties will pay and receive proportionate costs in this appeal. The appellant will pay the Court-fee due to the Government on the Memorandum of Appeal. M.S.K. Appeals allowed Decrtis medfied.;


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